Lawsuit seeks reversal for four minor subdivisions
A local homeowners group is suing the Flathead County commissioners for approving four Smith Valley minor subdivisions in December after their own county attorney said the projects were illegal.
The Batavia Kienas Homeowners Association filed the lawsuit on Jan. 7. Shawna Floyd, Don and Penni Collins, Andy Breland Jr., Bruce Rubin, Robyn Dickinson and Kay Sundh - all of whom live near the subdivisions - joined the action as plaintiffs.
The group wants to overturn the final approval of the Nez Perce, Cheyenne, Cherokee and Chippewa subdivisions, each of which created five 2-acre home lots on property along Batavia Lane and Kienas Road west of Kalispell.
The lawsuit maintains that the commissioners violated state law, the county subdivision regulations, the county master plan and the Montana Constitution.
For example, it said the findings of fact for the four projects "failed to consider the county attorney's position that these were illegal subdivisions [and] failed to adequately address water quality and quantity problems, or road access and fire protection requirements."
Last November, Deputy County Attorney Peter Steele recommended that the commissioners deny the four subdivisions, together with three other minor subdivisions southeast of Columbia Falls.
"When you look at their cumulative effects, they add up to a major subdivision," Steele said at the time. "This isn't a recommendation for a complete denial, but a recommendation that they go through major subdivision review."
Major subdivisions create more than five lots and require a public hearing and an environmental review as part of the approval process.
Given that all four Smith Valley minor subdivisions were proposed by the same family, and the fact that they're being marketed as a single subdivision, the Batavia Kienas group has long maintained that they were a major subdivision and should be reviewed appropriately.
They also have raised concerns about the impact this many new homes would have on water availability. Last fall, they submitted a formal request to create a controlled groundwater basin in the area, specifically as a way to regulate water use and protect their water rights.
However, the Montana Department of Environmental Quality gave a go-ahead to the subdivision projects in September, saying the developer "has demonstrated that the fractured bedrock [aquifer] can supply adequate and dependable water supplies."
Steele later reversed his recommendation as well, telling the commissioners that they should approve both the Smith Valley and Columbia Falls subdivisions because the developers made significant investments in their projects based on the county waiving the preliminary plats.
(The commissioners typically approve both a preliminary and final plat for all subdivisions. However, in specific circumstances, preliminary plat review for minor subdivisions can be waived. That's what happened with all four Smith Valley projects.)
"I've received information that the developers have spent more than $200,000 on the [Smith Valley] subdivisions," Steele said in December. "Given that they were relying on the preliminary plat approval they got from the county, it wouldn't be fair to deny their projects."
It's unclear whether the county would be liable for damages if this lawsuit proves successful.
The Batavia Kienas homeowners are asking that the four minor subdivisions be declared illegal and that the county pay the group's legal fees.
They also are asking for a permanent injunction "preventing the commissioners from implementing their approval of these subdivisions until they can demonstrate that they are in compliance with the law."
Before the lawsuit was filed, the county commissioners directed the Flathead County Planning Office to stop issuing preliminary plat waivers for minor subdivisions. All preliminary plats now will come before the commissioners for approval.
Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com